By Timothy Wafula
Health is a human right.
In Kenya, the right to health is a fundamental human right guaranteed in the Constitution. Article 43 (1) (a) of the Constitution provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.
Article 43 (2) provides that a person shall not be denied emergency medical treatment. There are also international treaties or conventions that guarantee the right to health and have been ratified by Kenya.
For instance, Article 12.1 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) where “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” is recognized by State parties to the convention.
What does the right to health entail?
The Committee on Economic, Social and Cultural Rights (CESCR) has interpreted the right to health as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.
Further, the committee has noted that the right to health should not be understood as a right to be healthy but instead that it contains both freedoms and entitlements.
That is, the right to control one’s health and body, including sexual and reproductive freedom; the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation; and the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
The right to health contains the following interrelated and essential elements: first, availability of functioning public health and health-care facilities, goods, and services. Second, accessibility of health facilities, goods, and services to everyone without discrimination.
Health facilities, goods, and services must be within safe physical reach, affordable, and information concerning them easily accessible.
Third, acceptability of health facilities, goods, and services, that is, respectful of the culture of individuals, minorities, peoples, and communities. Fourth, health facilities, goods, and services must be scientifically and medically appropriate and of good quality.
In Kenya, the Health Act, 2017 breaks down some of the health related human rights as follows: First, everyone has the right to reproductive health.
This means that every person has the right to be informed about reproductive health services; the right to access reproductive health services including to safe, effective, affordable and acceptable family planning services; the right to access appropriate health-care services to go safely through pregnancy, childbirth, and the postpartum period; and the right to access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy.
Second, everyone has the right to emergency treatment. This means that in an emergency situation, every hospital, private or public, should ensure that every person in need receives pre- hospital care; has their health status stabilized; and the hospital arranges for referral in cases where they do not have facilities or capability to stabilize the person’s health status.
Third, every person has the right to health information. This entails the right to receive information from a health care provider on their health status; information on the treatment they are receiving; information on the benefits, risks, costs and consequences generally associated with each treatment option; the right to refuse recommended medical options (and information on the implications, risks, and legal consequences of such refusal).
The government is also under an obligation to inform its citizens of the types, availability and cost if any of health services; the organization of health services; operating schedules and timetables of visits; procedures for access to the health services; procedures for laying complaints; the rights and duties of users and health care providers; and management of environmental risk factors to safeguard public health. Fourth, everyone has the right to informed consent.
Whenever a health service is provided to the patient, he/she must give permission unless the patient is unable to give informed consent, and consent is given by authorized person or next of kin or is authorized by law or court order or the patient is being treated in an emergency situation.
Everyone has the right to confidentiality and to confidentiality of information relating to their health status or treatment at a health facility. In receiving health services, patients also have duties.
This includes: duty to adhere to the rules of a health facility when receiving treatment or using the health services provided by the facility; duty to adhere to the medical advice and treatment provided by the health facility; duty to sign a discharge certificate or release of liability if they refuse to accept or implement recommended treatment; duty to supply the healthcare provider with accurate information pertaining to their health status; duty to cooperate with the healthcare provider; and duty to treat healthcare providers and health workers with dignity and respect; In conclusion, communities need to be empowered with information to demand for respect, promotion and protection of their health-related rights.
Communities also ought to participate in policy making and implementation processes in line with the constitution to ensure that the right to health is protected and promoted.
It is through constant participation either through community advocacy, reporting violations, seeking redress for violations, demanding for better quality services, monitoring transparency and accountability – that this right would be realized for all.